I could bore for England about the significance of the HHSRS, overcrowding and their relationship with the definition of homelessness, as well as the significance of the reworked notion of “reasonable to continue to occupy” by the HL in Moran, having worked on this for the last 18 months. In Hashi v Birmingham CC, reported in this month’s Legal Action, James Stark, to whom we are grateful for the transcript, has succeeded before HHJ Oliver Jones QC in the Birmingham County Court, in arguing that Birmingham failed to take account of the significance of an HHSRS assessment in the context of the definition of homelessness. This case, although only at County Court level, is interesting for a number of reasons in the context of homelessness and particularly the use of the HHSRS.
In summary, the basic question for Birmingham was whether Ms Hashi, who lived with her three children in a small two bedroomed flat, was homeless for the purposes of s 175(3). The flat was not statutorily overcrowded. There was a conflict on the evidence as to whether Ms Hashi and her three children were living in a Category A or B hazard for HHSRS purposes. Ms Hashi’s expert insisted that there were both category A and B hazards; Birmingham’s only that there were Category B hazards (Band D) but that there was a “probability of ‘harm through stress and lack of personal space”. The review decision adopted Birmingham’s own assessment, naturally, but did not say why it did so and why it preferred that assessment. That was an error of law. Further, the review decision focused on overcrowding, which was not so bad that the property was statutorily overcrowded, without ever getting to the heart of its effects on the “pattern of family life” both now and in the future. Indeed, the review decision focused on the question of overcrowding to such an extent that “although [the reviewer] purported to consider the particular problems of the particular family in the particular accommodation, and the detailed reports that were very case-specific, these considerations were effectively dismissed or ignored in favour of either total reliance or over-reliance upon the test of statutory overcrowding which … was wholly wrong” (at [22]). In fact, the future was barely considered at all, so that Birmingham’s case really fell at the first hurdle – after all, that is precisely what Baroness Hale was requiring local authorities to do in Moran (and, it might be added, significantly lowering the threshold for a finding of homelessness). Birmingham’s argument that, as they had given Ms Hashi points reflecting her housing need “to pave the way for the future allocation of a larger property” was rightly dismissed (“Points do not per se relieve the overcrowding problem”).
It would have been interesting to have been a fly on the wall at the hearing of this appeal – HHJ Jones QC seems to have accepted James Stark’s argument all the way, but in another court before another judge with a different counsel …